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Chasing child maintenance when your ex lives abroad

By 31 March 2020Children, FAQ, financial

If you are separate from, or divorce, your partner, you may receive spousal maintenance from them: ‘alimony’; as it’s termed in the United States. Then again, you may not: it’s all down to personal circumstances. Whether you do or do not will depend on your individual circumstances, but if you have children, and they live with you following the separation, then the situation becomes much clearer: there will be no questions about you right to receive child maintenance payments from your ex. The provision of financial support is a legal obligation placed on all biological and adoptive parents.

But the key word there is ‘legal’. Such obligations are enforced by the Child Maintenance Service – and ultimately by the British courts – but their legal authority, the jurisdiction, of these authorities only extends only as far as the border What happens, then, if your ex came from a different country and returned there after the divorce? What if they decided to move abroad after separating from you – or they agreed to you returning to the UK with the children following the divorce?

If you remain on good terms with your former spouse, and they have a good relationship with the children, they will most likely continue to pay child maintenance and all will be well. But what do you do if they drag their feet, delay payments, pay too little, or become so immersed in their new life they lose interest in their old one and refuse to meet their financial obligations at all? In other words, how do you enforce maintenance when your ex lives beyond the reach of the British courts?

We live in a globalised age, one in which people feel free to move between countries and marry multi-nationally. As a result, disputes over the payment of child maintenance frequently cross borders. The solution has been the establishment of multi-national treaties, in which each participating country agrees to recognise and enforce maintenance orders issued in the other jurisdictions. The key word here is ‘orders’. It is not possible to enforce a voluntary maintenance agreement with your ex: you will need to make it into a binding court order first.

Seek legal advice if you need to do this. An expert family law solicitor will be able to advise on the best approach to your situation and the most effective regulations to rely upon. If you already have an order, you may want to ask the court to make appropriate changes to this to reflect developing circumstances in your family life: again your solicitor can advise.

A typical first port of call for a British parent chasing maintenance from a former partner living across the Channel is European Community Regulation 4/2009 – the so-called Maintenance Regulation. This defines the recognition across member states of legal orders concerning spousal and child maintenance. Of course, nobody needs to be reminded that Britain is no longer part of the European Union, but “4/2009” remains the default arrangement for EU countries. At least for the time being.

Beyond the EU, several other international agreements are available, each applicable to different countries. These are visible on a recently updated list of the countries around the world with which the UK has a ‘REMO’ (reciprocal enforcement of maintenance orders) agreement, published by the Office of the Official Solicitor and Public Trustee.

Here we see the other main treaty now in use – “Hague 2007”, meaning the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, or, more usually, just the Hague Maintenance Convention.

It is one of multiple international legal treaties administered by Netherlands-based organisation the Hague Conference on Private International Law and of course it only applies to those countries which have signed on the dotted line, or ‘ratified’ the Convention: there have only been 14 to date.

Some considerably older treaties are also included on the list:

  • “Hague 73” – the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. This earlier convention was revised by its 2007 successor.
  • “Commonwealth Part 1” – the Maintenance Orders (Reciprocal Enforcement) Act 1972.
  • “UN” – the United Nations Convention on the Recovery Abroad of Maintenance 1956.
  • “Commonwealth 1920” – the Maintenance Orders (Facilities for Enforcement) Act 1920.

We tend to think of multi-national marriage and residency as a relatively modern phenomenon, and it is certainly true that people travel far more freely than they once did. But the age of some of these regulations demonstrates just how long chasing child maintenance across borders has been a recognised problem.

If you would like to discuss any aspect of this blog, please contact our Partners on 01223 443333.